Reply Brief — Foster Wheeler, LLC, et al., Petitioners v. Superior Court of California, Alameda County, et al.

NO. 21-521

In the

Supreme Court of the United States

FOSTER WHEELER, LLC (f/k/a FOSTER

WHEELER CORPORATION) AND NIBCO, INC.,

Petitioners,

v.

SUPREME COURT OF CALIFORNIA,

Respondent,

EDWARD RICHARDS ET AL.

Real Parties in Interest.

__________________________

On Petition for a Writ of Certiorari to the

Court of Appeal of California, First Appellate District

REPLY BRIEF FOR PETITIONERS

EDWARD R. HUGO

COUNSEL OF RECORD

HUGO PARKER, LLP

240 STOCKTON STREET, 8TH FLOOR

SAN FRANCISCO, CA 94108

(415) 808-0300

SERVICE@HUGOPARKER.COM

NOVEMBER 22, 2021

SUPREME COURT PRESS

COUNSEL FOR PETITIONERS

♦

(888) 958-5705

♦

BOSTON, MASSACHUSETTS

i

CORPORATE DISCLOSURE STATEMENT

FOSTER WHEELER LLC is a wholly owned,

indirect subsidiary of Amec Wheeler PLC, a publicly

traded company on the London Stock Exchange.

(LSE: AMEC)

NIBCO INC., a private, non-governmental party,

has no parent corporation and no publicly held corporation that holds more than 10% of its stock.

ii

TABLE OF CONTENTS

Page

CORPORATE DISCLOSURE STATEMENT ............. i

TABLE OF AUTHORITIES ...................................... iii

REPLY BRIEF FOR PETITIONERS ......................... 1

REASONS FOR GRANTING THE PETITION ......... 1

I.

PETITIONERS HAVE PRESENTED A JUSTICIABLE

CONTROVERSY .................................................... 1

II. THE REAL PARTIES IN INTEREST INCORRECTLY STATE THAT THE ALAMEDA SUPERIOR

COURT FOUND THAT FURTHER DEPOSITION

“WOULD” IMPAIR MR. RICHARDS’S HEALTH ....... 5

III. THE REAL PARTIES IN INTEREST ENGAGE IN

A TORTURED PARSING OF THE “QUESTION

PRESENTED” IN ORDER TO ARGUE THAT THE

“QUESTION PRESENTED” DOES NOT ARISE

UNDER THE FACTS ............................................. 6

CONCLUSION............................................................ 8

iii

TABLE OF AUTHORITIES

Page

CASES

TABLE OF AUTHORITIES

G.M. Gooch Lumber Sales Co. v. C. I. R.,

406 F.2d 290 (6th Cir. 1969) ............................... 1

Gilbert v. City of Cambridge,

932 F.2d 51 (1st Cir. 1991) .................................... 7

Harris v. Bailey,

675 F.2d 614 (4th Cir. 1982);............................ 3

Illinois State Board of Elections v. Socialist

Workers Party, 440 U.S. 173 (1979) .................. 4

Kennedy v. Block,

784 F.2d 1220 (4th Cir. 1986) ............................. 3

Moore v. Ogilvie,

394 U.S. 814 (1969) ............................................. 3

Murphy v. Hunt,

455 U.S. 478 (1982) ............................................... 4

Sinai Hosp. of Baltimore, Inc. v. Horvitz,

621 F.2d 1267 (4th Cir. 1980) ............................. 3

Southern Pac. Terminal Co. v. Interstate

Commerce Commission,

219 U.S. 498 (1911) ............................................. 3

United States v. Salerno,

481 U.S. 739 (1987) ......................................... 1, 2

Weinstein v. Bradford,

423 U.S. 147 (1975)............................................ 4

CONSTITUTIONAL PROVISIONS

U.S. Const., art. III ..................................................... 1

iv

TABLE OF AUTHORITIES – Continued

Page

STATUTES

Charles A. Wright, Arthur R. Miller, et al.,

WRIGHT & MILLER’S FEDERAL PRACTICE &

PROCEDURE, Thomson Reuters ....................... 2, 3

JUDICIAL RULES

Cal. Civ. Proc. Code § 2025.295....................... 4, 5, 6, 7

1

REPLY BRIEF FOR PETITIONERS

REASONS FOR GRANTING THE PETITION

I.

PETITIONERS HAVE PRESENTED A JUSTICIABLE

CONTROVERSY.

The Real Parties in Interest, Edward Richards

et al., rely on Justice Marshall’s dissent in U.S. v.

Salerno, 481 U.S. 739 (1987), an incomplete reading

of a federal practice guide, and the three-sentence

order in G.M. Gooch Lumber Sales Co. v. C. I. R., 406

F.2d 290 (6th Cir. 1969) to argue that Petitioners do

not have standing and that the matter is moot

because Petitioners have agreed to a full resolution

of the claims of the real parties in interest. They are

mistaken.

First, the Real Parties in Interest cite Salerno

for the proposition that “Article III of the Constitution requires that there be a live case or controversy

when the case was decided by the court whose judgment

we are reviewing.” Opp. at 1 (citing Salerno, 481 U.S.

at 769 [sic 759].) However, they fail to mention that

(1) this quotation is from Justice Marshall’s dissent

in Salerno; and (2) the majority in Salerno determined

that it could decide the facial constitutionality of the

statute at issue. In Salerno, the challenge to the facial

constitutionality of the Bail Reform Act remained live

and was properly presented to the Court, although

the defendant had been sentenced in unrelated proceedings, where the defendant had not been confined

pursuant to that sentence and remained incarcerated

2

pursuant to a pretrial detention order. Id. at 743-44.

See also id. at 759 (Marshall, J., dissenting). Thus,

the sole case the Real Parties in Interest cite in support

of their argument that Petitioners have no standing

reached the opposite conclusion, i.e., that the Court

had jurisdiction to decide the matter.

Here, too, there is a justiciable controversy, and

the matter has not been rendered moot even though

the case has been resolved as between the parties to

this petition. Relying on a cherrypicked section of

Wright & Miller’s FEDERAL PRACTICE & PROCEDURE,

as well as the three-sentence order in G.M. Gooch

Lumber Sales Co., 406 F.2d at 290,1 the Real Parties

in Interest contend that this appeal is moot. Not so.

1 The entire opinion reads as follows:

The above-entitled cause being considered upon a

Stipulation to Vacate Decisions and Remand Cases,

and it appearing that the parties hereto have agreed

to a compromise and settlement of the review taken

herein, and that the questions involved have become

moot, it is this 21st day of January, 1969,

Ordered that this cause may be, and it is hereby,

remanded to the Tax Court of the United States

with directions to vacate its decision entered in the

aboveentitled case, and to enter decisions in accordance

with the parties’ agreement in compromise;

And it is further ordered that the Clerk of this Court

forthwith transmit certified copies of this order to

the Clerk of the Tax Court, (Docket 403-66), and to

counsel for each of the parties, together with certified

copies of said Stipulation to Vacate Decisions and to

Remand Cases.

G.M. Gooch Lumber Sales Co., 406 F.2d at 290.

3

Although the Real Parties in Interest correctly

note that, generally speaking, “[s]ettlement of all claims

among all parties moots the action” (Opp. at 1 (citing

Wright & Miller, FEDERAL PRACTICE & PROCEDURE

§ 3533.10.2).), they fail to acknowledge the “capable

of repetition, yet evading review” exception to the

mootness doctrine. Southern Pac. Terminal Co. v.

Interstate Commerce Commission, 219 U.S. 498, 515

(1911). See also Moore v. Ogilvie, 394 U.S. 814, 816

(1969) (where Illinois statute would control future

elections as long as Illinois maintained her present

system, problem of placing new political party on ballot

was capable of repetition and Supreme Court would

hear appeal from dismissal of candidates’ declaratory

judgment suit, even though 1968 election for which

candidate sought relief was over); Harris v. Bailey,

675 F.2d 614, 616 (4th Cir. 1982); Sinai Hosp. of

Baltimore, Inc. v. Horvitz, 621 F.2d 1267, 1268-69 (4th

Cir. 1980) (issue of propriety of appointment of board

of inquiry in hospital labor dispute was one which

was capable of repetition yet evading review and thus

was not mooted by fact that hospital and union had

since agreed upon new contract). This exception recognizes that “[t]he mootness doctrine, if applied in its

most rigorous form, would prevent judicial review of

all controversies that are inherently short-lived.”

Kennedy v. Block, 784 F.2d 1220, 1222 (4th Cir. 1986).

Application of this exception requires the following

showing: “(1) the challenged action must be in its

duration too short to be fully litigated prior to its

cessation or expiration, and (2) there must exist a

reasonable expectation that the same complaining

party will be subjected to the same action again.”

Kennedy, 784 F.2d at 1222-23. (citing Weinstein v.

4

Bradford, 423 U.S. 147, 149 (1975) (per curiam);

Murphy v. Hunt, 455 U.S. 478, 482 (1982) (per curiam);

Illinois State Board of Elections v. Socialist Workers

Party, 440 U.S. 173, 187 (1979)). Both prongs are

established here.

First, by design, the challenged statute only

applies to cases that are expected to be short-lived

because a physician has attested in a declaration

that the plaintiff has mesothelioma or silicosis and

there is substantial medical doubt of the plaintiff’s

survival beyond six months. As noted in Petitioners’

opening brief, in the instant matter, the Real Parties

in Interest were granted a preferential trial date based

on Mr. Richards’s health. Petition at 3. In other words,

the case has been on an expedited schedule because

of the concern that Mr. Richards may pass away before

his case goes to verdict. Thus, preference cases, such

as this one, are often “in [their] duration too short to be

fully litigated prior to [their] cessation or expiration.”

Second, as acknowledged by Judge Markman of

the Alameda Superior Court, the questions raised

herein “ ‘are likely to recur in many future cases

until’ ” a higher court “ ‘can either (a) confirm that

this Court’s approach is the right one, (b) determine

that Section 2025.295 eliminates all discretion, or else

(c) set out guidelines concerning when (if ever) the

simple aggregate number of defendants alone might

permit a departure from the clear cap in Section

2025.295.’” Petition at 6 (citing App.39a). In particular,

Petitioners, as frequent defendants in alleged asbestosrelated personal injury actions, including preference

cases, will be denied due process by virtue of section

2025.295 over and over again, unless this Court issues

a writ of certiorari. Moreover, the Court of Appeal for

5

the State of California First Appellate District, Division

Five, has noted that “[t]his court’s decision to entertain

writ review of . . . [this] as-applied due process challenge to section 2025.295 should not be understood to

dictate that appellate courts will grant writ review of

future trial court rulings on this subject.” App.17a

(citations omitted). Thus, the instant Petition likely

represents Petitioners’ only chance to challenge section

2025.295.

II. THE REAL PARTIES IN INTEREST INCORRECTLY

STATE THAT THE ALAMEDA SUPERIOR COURT

FOUND THAT FURTHER DEPOSITION “WOULD”

IMPAIR MR. RICHARDS’S HEALTH.

The Real Parties in Interest claim that Petitioners’

“Question Presented” misstates the facts because

“the trial court concluded . . . further deposition would

impair the plaintiffs’ health.” Opp. at 1 (citing Alameda

Superior Court, Case No. RG210888294, Order dated

June 15, 2021, p. 5). However, the Alameda Superior

Court made no such finding in its June 15, 2021

order. Instead, the Alameda Superior Court noted that

Plaintiffs presented evidence “that a further deposition could endanger Mr. Richards’ health” and held

that “Moving Defendants have not established to the

Court’s satisfaction that requiring Mr. Richards to

sit for roughly 35 more hours (five full days) of continued deposition would comport with fundamental

principles of fairness and decency.” App.32a (emphasis

added).

In addition, tellingly, the Real Parties in Interest

fail to address the fact that Mr. Richards withstood

nine hours of direct examination by his counsel during

his deposition (Petition at 10, 18), which belies any

6

claim that his attorney believed the deposition was

impairing his health.

III. THE REAL PARTIES IN INTEREST ENGAGE IN A

TORTURED PARSING OF THE “QUESTION

PRESENTED” IN ORDER TO ARGUE THAT THE

“QUESTION PRESENTED” DOES NOT ARISE

UNDER THE FACTS.

The final main argument2 presented by the Real

Parties in Interest is that “[t]he ‘question presented’

does not arise under the facts.” Opp. at 2-7. However,

the Real Parties in Interest are only able to reach

this conclusion by engaging in a tortured parsing of

the “Question Presented.”

First, the Real Parties in Interest quibble with

Petitioners’ assertion that section 2025.295 “imposes

no time limit, at all, on the plaintiff’s examination”

by stating that “the statute is silent on this issue and

nowhere expressly provides that a plaintiff’s counsel

shall have unlimited time. . . . ” Opp. at 2. However,

there is no need to explicitly state that a party has

2 In Section 4.C., the Real Parties in Interest merely quote from

select portions of the trial court’s June 15, 2021 order. They fail

to present any analysis of the quoted portions or to present any

legal authority in this section.

Furthermore, it is unclear why the Real Parties in Interest are

focusing on a trial court opinion when the Petition seeks a writ

of certiorari regarding the California Supreme Court’s denial of

Petitioners’ petition regarding the appellate court’s opinion.

Lastly, the Real Parties in Interest are incorrect that this

Petition seeks review of the trial court’s exercise of discretion

because the appellate court found that “trial courts have no discretion to increase the time regardless of any circumstances

that may arise before or during the deposition.” Petition at 7

(emphasis added). See also App.14a.

7

unlimited time for a deposition. By failing to include

a time limit for a plaintiff’s attorney’s questioning of

his or her client, by default, there is no time limit.

Furthermore, Gilbert v. City of Cambridge, 932

F.2d 51 (1st Cir. 1991) does not stand for the proposition

that because Petitioners did not seek a protective

order to limit the time plaintiff was questioned by his

own counsel, they are estopped from seeking appellate

review. This is because Gilbert discusses the concept

of exhaustion of administrative remedies, not judicial

remedies. See generally Gilbert, 932 F.2d 51. In any

event, Petitioners’ request for relief is not based solely

on the fact that section 2025.295 does not place a

limit on plaintiff’s examination by his or her own

counsel, but the interplay between the lack of a time

limit on plaintiff’s counsel and the hard cap of 14

hours on all defense counsel collectively.

Second, the Real Parties in Interest present the

strawman argument that Petitioners are seeking

“unlimited” deposition time. This is demonstrably

false. As stated in the Petition,

Petitioners are not arguing that time limits

on the deposition of a terminally ill party

can never be imposed by the Legislature.

Rather, Petitioners have established how

the application of an inflexible, one-sided

time cap, without regard to the circumstances

of a particular case and the ability of trial

courts to intervene, has resulted in a violation

of Petitioners’ due process rights that must

be remedies by this Court.

Petition at 20.

8

CONCLUSION

For the foregoing reasons, Petitioners respectfully

request that this Court issue a writ of certiorari to

review the California Supreme Court’s denial of

Petitioners’ petition.

Respectfully submitted,

EDWARD R. HUGO

COUNSEL OF RECORD

HUGO PARKER, LLP

240 STOCKTON STREET, 8TH FLOOR

SAN FRANCISCO, CA 94108

(415) 808-0300

SERVICE@HUGOPARKER.COM

COUNSEL FOR PETITIONERS

NOVEMBER 22, 2021